Delhi Development Authority vs Girdhar Engineers And ...
2005 Latest Caselaw 1081 Del

JUDGMENT

Swatanter Kumar, J.

1. This is a petition under section 28 of the Arbitration Act, 1940 (hereafter referred to as the Act) wherein the petitioner prays for grant of extension of time to the arbitrator Shri M.S. Telang for concluding the arbitration proceedings pending before him.

2. According to the petitioner, the respondent was awarded the work of construction of SFS houses at Sarita Vihar, Sector-I, Pocket F and G and A Group-I vide agreement No. 19/EE/CPD-III/DDA/84-85 14/EE/CPD-II/DDA/85-86. Because of the breach committed by the respondent, disputes arose between the parties and work was rescinded on 28th March, 1987. Respondent No. 1 wrote a letter dated 9.12.87 requesting the Engineer (Member), DDA to appoint an independent arbitrator. The Engineer (Member) of the petitioner appointed Shri K.K. Reddy as the sole Arbitrator on 13th June, 1988 to settle the disputes between the parties and various disputes were referred to him. Mr. Reddy, resigned as an arbitrator on 6.4.89, hence the Engineer (Member), DDA appointed Shri M.S. Telang as sole Arbitrator to supply that vacancy and for determination of disputes vide letter dated 29th November, 1989. 51 claims of the respondent and case of the DDA was referred to the said arbitrator Along with 12 counter claims. The responded did not file any reply to the counter of the DDA for a considerable time and subsequently declined to extend the time for making the award to the arbitrator. The counter claims filed by the petitioner were to the extent of more than Rs. 128.75 lacs pls interest. Thereupon such claim which is stated to be pending as of today and no proceedings have been taken for a considerable time. It is averred that cause of action arose in favor of the petitioner and against the respondent on 18.12.90 when the arbitrator adjourned the case sine die till the extension of time for making and publishing of the award. On this premises, according to the petitioner, the Court should grant extension of time for making the award and should not permit the respondent to frustrate the arbitration proceedings which have been pending and to which both the parties had submitted at one point of time.

3. Notice to respondent No. 1 was issued which was received back by the Registry of the Court with the remarks that 'Firm was found locked'. Finally the Court vide its order dated 2.2.2005 directed the petitioner to serve respondent No. 1 by way of publication in the edition of the 'Statesman' and by way of affixation at the last known address. This order of the Court was complied with and as nobody appeared before the learned Joint Registrar on 28th April, 2005, the case was listed for appropriate directions before the Court. The case was listed on 18th May, 2005 and thereafter on 15th July, 2005. The date of 15th July, 2005 was fixed by the Court vide its order dated 2nd February, 2005. On that date, respondent No. 1 was directed to be proceeded against ex-parte and despite service, there was no appearance even on behalf of respondent No. 2.

4. The Arbitrator had entered upon the reference and had entered the claims/counter claims filed by the parties to the agreement. Copy of the letter dated 18th December, 1990 has been annexed to the petition by the DDA which is a letter vide which the parties had declined to enlarge the time for making and publishing the award.

5. It is argued by the learned counsel for the petitioner that the parties had participated in the arbitration proceedings prior to that date and had accepted the jurisdiction of the arbitrator to entertain and decide the claim and counter-claims filed by the respective parties. As there is no opposition on behalf of respondent No. 1 despite service, I see no reason why the time for making the award should not be enlarged particularly when this petition was filed in this Court in the year 2001. There is prolonged and unexplained delay in filing the present petition and despite opportunity, the DDA has failed to explain its conduct. Learned counsel appearing for the petitioner while relying upon the judgment of the Kerala High Court in Fertilisers and Chemicals Travancore Ltd. v. Industry Side Pvt. Ltd. and Ors. 1988(2) ALP 59 and the judgment of the Supreme Court in State of Punjab v. Hardyal contended that the provisions of Limitation Act are not applicable to a petition under Section 28 of the Arbitration Act and as such the present petition should be allowed. No doubt, the provisions of the Limitation Act strictly are not applicable to such a petition but they also do not vest a party with an indefeasible right to file the application at his whim and fancy, after 11 years, that too without any explanation.

6. In the circumstances aforestated, I would grant extension of time to the arbitrator of four months from the date of notice of this judgment to him by the Registry, for making and publishing the award in accordance with law. However, it is further made clear that none of the parties to the petition shall be entitled to any interest on the sum determined by the arbitrator as due to the other party, right from the year 1990, till the date of disposal of this petition. Though, I would allow this petition in the interest of justice but subject to payment of Rs. 5,000/- as costs by the DDA to the Legal Aid of the High Court.

7. Ordered accordingly.

8. Petition stands disposed of.